JUDGMENT D.K. Seth, J.
1. The District inspector of Schools had permitted filling up of one vacancy in the concerned school and consequently an advertisement was Issued in which only one post was mentioned. The selection committee however selected three persons in order of merit. But in the proceedings for selection it had mentioned that the selection is being made against three posts. The candidate mentioned at SI. No. 1 in the select list was appointed against a post that fell vacant for which permission was given by the District inspector of Schools and advertisement was published. The second candidate in the select list was appointed and was ultimately absorbed against the vacancy in a post held by one Smt Meera Agrawal who was transferred on 8.2.1980. The petitioner who was in SI. No. 3 in the select list contends that one Sri R. P. Singh was promoted to L. T. Grade on 2.9.1979 and therefore in that vacancy the petitioner was given appointment thereafter. initially approval was accorded but subsequently the said approval was recalled. Against the said order recalling the approval, the petitioner moved a Writ Petition No. 11550 of 1989 which was disposed of by an order dated 8.5.1991 passed by this Court, in the said order, the District inspector of Schools was directed to dispose of the proceedings under Section 16E (10) of the U. P. intermediate Education Act. 1921, hereinafter called as the 'Act', finally, in the said judgment it was held that it is well within the jurisdiction of the District inspector of Schools to cancel, the appointment under Section 16E (10) of the said Act. Pursuant to the said order, the respondents by an order dated 8.2.1993 had finally decided the proceedings under Section 16E (10) of the said Act. By the said order, the said appointment was not approved. It is this order which has since been challenged in this petition.
2. Mr. S. N. Srivastava, learned counsel for the petitioner contends that there were three vacancies and since the second candidate has been absorbed, therefore, the petitioner should also be similarly appointed. Though in the advertisement only one post was advertised but the second candidate in the select list having been appointed in the second vacancy, the respondents had discriminated between the second candidate and the petitioner in refusing his appointment to the third vacancy. If the respondent can allow the alleged irregular appointment of second candidate to be approved, in that event, they cannot refuse approval of the appointment of the petitioner only on the ground that he has not been regularly selected. He further contends that there being three vacancies and the vacancy in which the petitioner was sought to be accommodated having been occurred much before the vacancy occurred in 1980 against which the second candidate was appointed and approval was given to his appointment, the approval to the petitioner's appointment cannot be recalled.
3. Learned standing counsel Mr. K. R. Singh on the other hand contends that approval was given to advertise only one post and was so advertised accordingly, therefore, there is no scope for approval of the petitioner's appointment particularly when the selection was not in accordance with law. He further contends that even if the second candidate is accommodated illegally, even then the same cannot be a basis for the petitioner to claim any legal right. According to him the Court cannot be a party to such illegal appointment. If some illegality has been committed in some cases, then it cannot be a ground for a person to say that the respondents cannot discriminate and therefore to go on perpetuate such illegalities. He further contends that according to the prescribed procedure on the basis of the strength of the students there cannot be any more vacancy in which the petitioner could be accommodated in C. T. Grade. On these grounds he contends that this writ petition be dismissed.
4. I have heard learned counsel for the parties at length.
5. Admittedly it appears that only one post was directed to be filled up by the District inspector of Schools and accordingly the advertisement contained one post. But the Selection Committee had selected three candidates who were placed in order of merit. Though it is mentioned that the selection was against three posts but it was not mentioned that these three candidates were selected against which post. On the other hand the selection was made of three candidates in order of merit. When the advertisement was published for filling up of one post, there was no scope for the Selection Committee to make a selection for three posts. If it is in violation of the permission granted and the advertisement, the same cannot confer any legally enforced right that may withstand legal scrutiny.
6. The judicial process cannot be utilised to support a mode of recruitment which is de hors the rules for recruitment, it cannot create any legal right which is not available to a person because of the illegality or irregularity in the mode of recruitment. The jurisdiction conferred on the Court is a jurisdiction that flows from statute. The writ jurisdiction is invoked for enforcement of a fundamental or legal right. Admittedly, here, the right is not fundamental in nature. Therefore, it has to fall within the ambit of legal right. Any order to be termed as legal, the right must be supported legally and it must flow from a process which is supported by law. In the present case, there is no scope for recruitment, against any post other than the post advertised. The moment the first candidate was appointed, the advertisement. recruitment and selection was over. Even if two more names were included in the select list, the select list becomes ineffective and void as soon the first candidate is given appointment. So far as the second candidate is concerned. the appointment may be illegal or irregular but that question is not before this Court. The said appointment is outside the scope and purview of scrutiny in this proceeding by this Court. The second candidate is also not a party to the proceeding. Therefore, no observation could be made as against him in the present proceeding. Any observation even if made in this proceeding, by no stretch of Imagination, such observation would be binding on him since no opportunity was afforded or accorded to such candidate.
7. In the case of State of Himachal Pradesh v. Suresh Kumar and another. 1996 (2) SLR 321, it was held that judicial process cannot be utilised to support a mode of recruitment de hbrs the rules, inasmuch as having made rules for recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. Since the vacancies are required to be filled up in accordance with the rules and all the candidates who would otherwise eligible are entitled to apply when recruitment is made and seek consideration of their claim on merit according to the rules for recruitment along with all the eligible candidates. Therefore, appointments through a different process without giving opportunity to others cannot be a conduit pipe for regular appointment which would be a backdoor entry detrimental to the efficiency of service and would breed seeds of nepotism and corruption.
The ratio decided in the said case squarely applies in the facts and circumstances of this case, inasmuch as here also the alleged illegal selection appears to be a conduit pipe through which backdoor entry is being sought to be enforced through this writ petition.
8. The principle of equity is based on sound principle of natural justice. The equity and natural Justice cannot mean inequity and injustice to others. The equity has to be applied having an eye to the judicial system, and the provisions contained in Articles 14 and 16 of the Constitution when it comes to the question of appointment. A person cannot seek equity while breeding inequity for others. If on equity the petitioner is granted approval, in that event, it will cause inequity in favour of all other eligible candidates who could have applied for the test if it was advertised. There cannot be any equity based on illegality. One illegality cannot attract the principle of equity in order to enable the Court to direct the respondents to perpetuate illegality and once again to take action resulting into another illegality. The equity is a principle which cannot breed illegality. If it breeds illegality, it will erode the concept of natural justice. Justice is a concept which means justice to all, it cannot be confined, irrespective of Articles 14 and 16 of the Constitution, to only one candidate who seeks equity on the basis of some illegality and irregularity. Only when the right is supported by law and is regular and legal then only one can claim equity and natural Justice. Natural justice is a justice natural. The nature cannot be isolated so as to give the benefit to only one person while depriving all those eligible. If the post is allowed to be filled up by the petitioner though his illegal and irregular selection, in that event all either eligible candidates who could have applied and could be considered for being appointed if it was advertised would be excluded from availing of such opportunity contrary to the concept of equality and natural justice as it flows from Article 14 read with Article 16 of the Constitution.
9. If in case one Illegality is committed and for some reason or other the same has not been challenged and is not open before this Court for consideration, in that event, relying on such illegality, one cannot claim parity in the matter of illegal or irregular appointment nor can it be the basis for allowing discrimination. There cannot be any discrimination based on Illegality. If such a concept is accepted, in that event, it would perpetuate illegality. The Court cannot be a party to an illegality. The jurisdiction of the Court cannot be permitted to support illegality. Discrimination can be claimed only when a person is discriminated though he had some legal right. There cannot be any question of discrimination if a person alleging discrimination himself does not have any legal right. All these concepts of equality and discrimination are based on sound principle of law and can be applied when there is a legal right. Equality and discrimination cannot be conceived to be a concept de hors legality.
10. In the counter-affidavit in paragraph 19 it has been pointed out that on the basis of the strength of students there cannot be any more post. This paragraph of the counter-affidavit has been dealt with in paragraph 11 of the rejoinder-affidavit wherein nothing has been stated that even according to the strength of students of standard, the school could have one more post, it is specifically pointed out in the counter-affidavit that on the basis of the standard, the school could not have any more post in C.T. Grade in which the petitioner can be accommodated. The said statement having not been specifically denied, it is not possible for this Court to hold otherwise.
11. In case no post is permissible or available then there cannot be any question for grant of approval to the appointment of the petitioner. Then again the advertisement was made for only one post as approved by the District inspector of Schools and the selection having been made for three posts, the same cannot be binding on the District inspector of Schools for the purpose of granting approval to such appointment.
12. Section 16E (10) of the U. P. intermediate Education Act, 1921 provides that :
"Where the State Government, in cases of the appointment of Head of institution, and the Director in the case of appointment of teacher of an institution, is satisfied that any person has been appointed as Head of the institution or teacher, as the case may be, in contravention of the provisions of this Act, the State Government or, as the case may be. the Director may, after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary."
13. If it appears to the respondents that the appointment of a teacher is in contravention of the provisions of the Act, in that event, it has power to cancel such appointment after giving opportunity to the person concerned, in the present case opportunity was given to the petitioner and the order was passed by the Director. The petitioner being a teacher, the Director was the competent authority who may exercise the power under Section 16E (10) of the Act, it is only when the case of Head Master such power is to be exercised by the State Government. The entire scheme of recruitment and appointment even on temporary basis are governed by the various provisions made under the said Act or the Regulations framed thereunder. Even for temporary appointments provisions have been made in various Removal of Difficulties Orders. If these provisions are contraventions, then Section 16E (10) is attracted and it is open to the State Government or the Director, as the case may be, to exercise the power under Section 16E (10) of the Act.
14. In the case of Hori Krishna Tripaihi v. State Government of U. P. and others, 1984 UPLBEC 172, it was held that even the Director can take suo motu action to consider the validity of appointment of a teacher. By reason of various enactments, the Committee of Management of all the nongovernmental aided institutions were denuded of their power of appointment de hors the provisions contained in the Act or the Regulations framed thereunder or under the provisions contained in U. P. Secondary Education Service Commission and Selection Board Act and the various Removal of Difficulties Order. The alleged appointment of the petitioner by the Management is wholly in contravention of the provisions of law, a ratio enunciated in the case of Ramji Dwivedi v. State of U. P. and others, 1983 UPLBEC 426, by the Apex Court affirming the decision between the same parties of the Full Bench of this Court in 1982 UPLBEC 137.
15. Thus, Section 16E (10) of the Act empowers the Director to cancel the approval which is also so held in the earlier writ petition filed by the petitioner. The said question therefore cannot be reopened.
16. Now the Director in exercise of power under Section 16E (10) of the Act has decided the question. After having gone through the said order. I do not find any infirmity. On the other hand, in the said order, it had elaborately dealt with the points that the District inspector of Schools had permitted only one post to be filled up and the advertisement was issued in respect of one post and that there was no post available in which the petitioner could be accommodated. Therefore, in the absence of any infirmity in the order, I do not find any reason to interfere with the same.
17. The writ petition, therefore, fails and is accordingly dismissed. However, there will be no order as to cost.